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Human Organ trafficking in Kosovo - EULEX on a Slippery Slope

Nikos Papakostas - 9/12/2012

INTRODUCTION

In 2008, Carla Del Ponte, former ICTY chief prosecutor, published a book titled “The Hunt: Me and War Criminals”. The book, apart from widespread criticism over the prosecutor’s self-serving presentation of facts and the self-righteous apprehension of her incumbency, revitalized the political and historical debate on the 1998-1999 conflict between the Federal Yugoslav Army and the Kosovo Liberation Army. Leaving aside Del Ponte’s accusations of all implicated parties for their lack of cooperativeness and competence, which can be explained by the very nature of memoirs writing; the disclosure of the investigation that ICTY carried out in 2004 and was built on allegations of inhuman behavior and human organs trafficking which are supposed to have taken place after the conflict in 1999 by members of the Kosovo Liberation Army were without a doubt the most interesting insight of the book.

The investigation followed reports made by numerous local and international journalists who claimed that more than 300 people, Serb militants and civilians, Albanians who were considered cooperators with Serbian authorities and therefore “traitors” as well as a limited number of internationals, were subjected to bodily organs harvesting after being executed by KLA militants in the aftermath of the conflict. According to the prosecutor the harvesting of body parts, aimed for trafficking in the black market, took place in Albanian territory. Another point in Del Ponte’s book that puzzled, to say the least, international analysts and policy makers was her disclosure that the evidence that had been painfully collected during the investigation at the so called “Yellow House”, that is at one of the key locations where the alleged harvesting of human organs took place (including heavy sedating medicine and evidence of blood stains), were destroyed without her permission in 2005.

Following the publication, the Council of Europe charged Swiss former senator Dick Marty, with an urgent probe on the case which lasted about a year and a half and resulted in a 27 page long draft report. The main findings of the report can be summed up as follows: a. highly ranked Kosovar politicians, including Prime Minister Hashim Thaci, led organized crime networks, namely the Drenica Group, involved in trafficking of drugs and human beings, b. other central political figures, close to PM Thaci were involved in a network of human organs trafficking that harvested body parts (primarily kidneys) from Serb and Albanian prisoners and trafficked them to the Black market while they were also present, they supervised or exercised themselves inhuman treatment on prisoners, c. the bulk of the human organs trafficking operation took place in Albania while the assertion of Tirana that no bodies are to be found in Albanian territory is logically unfounded , d. there are connections of the human organs trafficking networks operating in Albania after the conflict with the infamous “Medicus” case again involving political figures of the inner circle of Hashim Thaci.

The first and last points of the report are not going to be discussed here; on the one hand, because there is nothing really new about the former. The fact that trafficking activities, involving highly ranked political figures, were carried out by the KLA in order to keep the cash flow running is well-known to anyone who has followed a half decent bibliography regarding the 1998-1999 conflict . Besides, illegal activities, such as trafficking, during a conflict are to a large extent expected and usually go unpunished in the context of post-conflict reconciliation. With regards to the “Medicus case”, it is rather possible that the two probes have common links or even that they are parts of the same network, however, the point of the present article is to present human organs trafficking in the context of the conflict and the balance of powers it implies and the correlations between the two cases does not add anything in that regard.

Marty’s report was enough to revitalize the international attention on the Kosovo conflict and to bring forward, once again, the frictions of the Security Council on issues related to the Western Balkans between US, UK and France, on the one end, and Russia and China, on the other. The official investigation of Marty’s findings was taken up by EULEX, European Union’s Rule of Law mission in Kosovo, causing Belgrade’s, but more intensely and vociferously its allies’, Russia’s and China’s, discontent in the Security Council. Especially the latter, despite Belgrade’s commitment for cooperation in the investigation regardless of the leading institution (EULEX or UN), raised serious concerns on the way the allegations are being investigated, accused the Head of EULEX probe, Clint Williamson of being biased and asked for a UN probe that could guarantee neutrality, adding that “the investigation into the involvement of Kosovo leaders is being conducted by the countries that, in the past, have helped these people come to power in Kosovo” .

Currently, there are no less than six investigating teams on the human organs trafficking affair: the Serbian prosecutor’s, the Pristina authorities’, the OSCE’s, the Council of Europe’s, the Russian and the EULEX one. In a region were IGOs over-population and duplication of mandates has been notorious, this is hardly promising. However, the main reason for the limited progress of the investigation so far has to do with Albania’s refusal to allow international investigations to be extended on its ground claiming that it was not directly implicated in the conflict. Nevertheless, on May 3rd 2012, Albanian President Sali Berisha decided to finally open the doors to EULEX investigators and offered Albanian authorities’ unconditional support to their venture. Tirana’s decision, depending on its handling by international missions and primarily EULEX, can be rendered a turning point with regards to the process of conflict resolution and the historical appraisal of the 1998-1999 war.

ANALYSIS

There is hardly any reason to assume that the “Marty Report” had different motives than the ones indicated by its author and that is to correct the misperceptions of the 1999 conflicts and the stereotypes it entailed, on the one hand, and to bring a sense of closure to missing persons’ families, on the other. Also, there is no reason to doubt that CoE interviews took place as reported and that the allegations made by Del Ponte were confirmed by former KLA militants to Dick Marty and his team. Thus, despite the vagueness of the allegations and the lack of concreteness and hard evidentiary support of Marty’s report, it appears that acts of inhuman treatment and also human organs theft and trafficking were, to one extent or the other, carried out after the conflict’s end. In that sense, it is only fair to note that the Council of Europe with its largely apolitical role duly published its findings in the way it did and refrained from providing further evidence that would disturb the probe of Pristina and EULEX or would jeopardize the wellbeing of the suspects .

However, the role and mandate of strongly political instruments with wide mandates, such as the EULEX and KFOR, constitutes the current probe a whole different, much more complicated story. First of all, it should be made clear that, since the allegations of inhuman treatment of prisoners and of human organs’ trafficking have been published it would be rather impossible for EULEX to dismiss them given that it is morally, legally and politically obliged not to. I make this clarification because, as it will be discussed later, the interests of the European Union (or NATO for that matter) do not lie in digging into past atrocities that could potentially raise more doubts over the missions’ legitimacy and competence within the Security Council, escalate pressure and scrutiny of its effectiveness and rise interethnic tensions.

The challenges EULEX has to face in order to build strong cases and achieve perpetrators indictments are manifold. First, as it has been repeatedly proven throughout international missions’ presence in Kosovo, cooperation between local and international institutions is limited and dysfunctional . Second, the bad shape of UNMIK records as well as the fragmentary investigation that resulted in “300.ooo pages of disarray” handed over to EULEX in 2008, deprived the EU mission from essential data and testimonies that were either not collected or were lost or destroyed. Third, the elapse of thirteen years or so since the end of the conflict renders the collection of incriminating evidence rather unlikely while the destruction of the only reliable evidence in 2005 further undermines the venture. Fourth, the clannish structure of the Albanian society secures an “omerta” among witnesses and potential suspects and obstructs EULEX at building cases that almost exclusively depend on testimonies. Fifth, some of the primary suspects for the case enjoy diplomatic (as in the case of Hashim Thaci) or parliamentary immunity. Sixth, and arguably most importantly, the terrible records of EULEX as well as ICTY at witness protection, which resulted in “suicides”, “accidents” or straightforward killings of potential witnesses , render the prospect of new and reliable testimonies uncomfortably unlikely.

Finally, the international networking of Albanian clans and the constant flow of information of Kosovars’ whereabouts and activities certainly does not make EULEX job of putting witnesses on the stand any easier.

So far, most of the former KLA suspects of human organs trafficking and inhuman treatment have been released from custody months or years after their apprehension. The case of Fatmir Limaj and three other ex-KLA fighters (Nexhmi Krasniqi, Naser Krasniqi and Naser Shala), released on the 2nd of May 2012 after accusation against them were dropped due to lack of evidence or of Rasmush Haradinaj released a few months earlier, after the key witness of ICTY refused to repeat his statement before court, are characteristic. They are also indicative of all the aforementioned impediments as well as a further one: it is rather different for a witness to speak freely, save anonymously, for a Council of Europe investigation carrying no legal obligations for them and it is a whole different story to put the same men on the stand before an international court.
But, for argument’s sake, let’s assume that putting convincing witnesses on the stand was possible; Charging key political figures with a decade old accusations, does not really suit neither the European Union nor the United States given that they have found in the face of Prime Minister Hashim Thaci and the current political elite, predictable and dependent partners whose implication in the conflict secures a mutually beneficiary silence. Besides, the United States and president Obama especially in the context of the upcoming elections wants American soldiers out of Kosovo. That would be unlikely, at least in the short term, should human organs trafficking perpetrators are brought to justice, given the possibility of a new round of violence. Here, it is important to note that one’s war criminal is another’s war hero. Therefore, and based on previous experience and prosecutions, it would be highly improbable that the Albanian constituency will leave potential indictments of former KLA fighters unchallenged.

With regards to EULEX, there is need for the EU mission to reinforce its credibility both before the conflicting sides (primarily the Serb side) and the international community. With regards to the former, EU mission needs to diminish skepticism of both sides and to address the feeling of discrimination that is widespread among the Serb constituency. Regarding the later, criticism over the legitimacy, competence and impartiality of EULEX needs to deescalate in order for the mission to avoid destructions and political pressures and move forward with its demanding mandate. Besides, as it has been analyzed elsewhere the European Union is looking for its first success as an effective political player and its implication in the Western Balkans is viewed as an opportunity it cannot afford to miss.

However, the probe on human organs trafficking and inhuman treatment does not really depict the vision of EU leaders who, in 2008, exhausted their political leverage for acquiring the leading role for resolving the Kosovo conflict and reinstating the Rule of Law. Rather it is an uncomfortable externality of the job or to put it differently, an aspect of the job description that the applicant hopes she will not have to deal with. This is because, first, from the four year of experience since the EULEX mission was deployed in Kosovo, its primary aspiration was to reform the judicial system and its competences on day by day basis rather than to correct the wrong doings of the war and get involved in lengthy and politically uncomfortable probes. Second, it is rather questionable that both KFOR and EULEX, should they have a change to avoid it, would go into this investigation given the threats it implies for the maintenance of peace and their image as effective players in the conflict. It is possible that even in cases of indictments the image of EULEX will not be thoroughly improved in the eyes of Serbs; given the impossibility of the task of prosecuting the bulk of war criminals it is likely that any fragmentary indictments will occur to the Serb side as an effort of sweetening the pill.
Finally, it is rather questionable to what extent the process of peace building has preceded adequately and how far we are from a fresh outbreak of violence (such as the one in 2004 or in July 2011). In other words, it is questionable whether the probe and any possible indictments will result in the much promoted in Marty’s report “closure” or in a fresh opening of interethnic tension. The events that took place in July 2011 , together with the recent occurrence of violence and mutual provocations ahead of the Serb elections, indicates that nationalistic tensions from both sides have not fully subsided. Moreover, it is highly probable that any potential outcome of the probe will be used on political grounds by both sides in order to rise instead of diminishing tension. The victory of the nationalist and pro-Russian SNS party leader Tomislav Nikolic on the 20th of May elections has further complicated the situation. Russia already exerts escalating pressure for an UN-led probe while the rise of a nationalist leader constitutes any outcome of the EULEX probe largely unpredictable. Should there be no results, the Serbian government will accuse EULEX for being biased, should there be results the tension will come out of indignation and grievance.

The process of conflict resolution between Serbia and Kosovo (under UNSCR 1244) after many years has recently been put on track with the EU fostered technical dialogue since March 2011 which has, so far, resulted in tangible progress and mutual concessions stemming from Belgrade’s commitment and aspiration to EU integration. The latter, should Serbia continue on the European path, is expected to finally stumble on a mutually accepted solution on the Kosovo issue. Should a relapse to violence is averted in the pre-accession period and the bilateral debate continues it is rather likely that such a solution could be reached in the medium term. Therefore, the venture of setting things straight for past wrongdoings can be costly and can have a devastating impact on the process of conflict resolution and, therefore, should be handled cautiously and effectively.

POLICY RECOMMENDATIONS

This paper obviously does not suggest that EULEX should leave the human organs trafficking case altogether as this would be even worse for its reputation, for attracting the much needed cooperativeness of Belgrade and for maintaining stability. What we are suggesting is that EULEX abolishes its well-known weaknesses. That is:

Make strong cases – or make no cases at all: So far, the international community has functioned somewhat like investigator Eliot Ness in the case of Al Capone: “Make any charge that will stick to get suspects in custody and then built up your case”. This was the case with Fatmir Limaj as well as with Rasmush Haradinaj (by ICTY) who were kept in custody for years under largely unsustainable accusations (especially after the alleged suicide of witness X) probably with the consideration that other supporting evidence and testimonies will be gathered in the meantime. However, this strategy seems to be unworkable for all the reasons that were analyzed earlier, as well a further one: KLA lacks a clean cut hierarchy which would render the arrest of a leader liberating for potential witnesses. Rather, it is built into society and regardless of how many suspects will are brought to court, the threat for witnesses will not be diminished. Therefore it is essential to stop arresting suspects without concrete evidence against them given that they increase tension on both sides and diminish the credibility of EULEX.

Utilize the process of EU integration as leverage on Pristina: The only way the aforementioned prosecution practices could go unchallenged would be through securing the unconditional support of Pristina political elites. This could be potentially achieved through the effective use of the ‘carrot’ of tangible progress in the EU integration process that could diminish political costs for Pristina for actively cooperating with EULEX, would increase their commitment for the establishment of the Rule of Law and could, therefore, minimize clans’ legitimacy for acting on behalf of the Albanian community.

It’s now or never: With regards to the timeliness of EU’s implication in Kosovo, it should be noted that ahead of the escalating EU economic crisis both the strategic goals of the Union regarding enlargement prioritization and its attractive power as a stimulus for candidates’ reform are largely diminished. On the other hand, what the European Union will come to mean in the following years is still unknown. Therefore, it is essential that the EU uses its current momentum, based on the candidacy potentiality and the countries’ commitment to that goal for promoting consensus on the human organs’ trafficking probe as part of the conflict resolution process, before EU’s lack of political commitment and will to Western Balkans’ integration becomes even more visible and leads to nationalist anti-EU forces gathering momentum and coming to power in Serbia and Kosovo.

Utilize the process of EU integration as leverage on Albania: So far the emphasis put on Albania’s lack of cooperativeness in the case has only been minimal . It is obvious that most of the evidence as well as many bodies that can confirm and help compose a case on human organs trafficking, if they still exist, are in Albania. Therefore, the European Union should increase pressure on Albania and emphasize further in progress reports that without cooperation on the particular probe, no advancement towards integration will be made – or even relate Albania’s stance to the granting of membership status. Moreover, it is essential that the European Union builds on the commitment of Sali Berisha for opening Albania’s borders to EULEX and realize its investigation as quickly and as discretely as possible and with as much personnel as possible in order to prevent retaliation from Albanian extremists either against the Albanian government or potential witnesses.

It is all about the witness protection system – if it is not too late: Arguably the most painful blow on EULEX’s credibility resulted from the “suicide” of Agim Yogaj (also known as Witness X - security guard to the infamous Klecka prisons were many of the acts of inhuman treatment as well as human organs’ trafficking took place). Together, with previous acts of intimidation or of cases of witness disappearances during the ICTY probe, it will take extreme political will and persuasiveness on behalf of EULEX for witnesses to testify. Therefore, it is essential that witnesses both in the region and abroad are secured and that their lifelong protection is assured. Should that not be the case, nothing can come out of a probe that is overwhelmingly dependent on witness testimonies given that any incriminating evidence are most likely destroyed thirteen years after the war. Finally, building a dependable witness protection system will alleviate Dick Marty’s reservations of sharing his list of interviewees and will provide EULEX with a new and extensive and, probably, dependable source of data.

In that context, public image debacles such as the one with Nazim Bilaca, a key prosecution witness, who in 2009 was put under protection and house arrest four days after he had gone public with claims of murder, torture and blackmail against top ex-KLA officials , should by no means be repeated.

Should move fast or leave the case altogether: Speed is a central element of the particular probe. After no top-level indictments having taken place throughout the past year and a half, it is rather possible that people will start getting impatient (especially on the Serb side) while EULEX’s credibility or its political will for putting suspects of trials will be increasingly contested.

Furthermore, it is rather possible that EULEX will be forced to drop cases, as it was the one with Fatmir Limaj, due to the slow pace of the investigation.
Should improve its human resources both in quantity and quality: In two years time EULEX will effectively curtail its number of personnel in Kosovo. The probe on human organs trafficking should be finalized by then, first, because it is imperative for EULEX to work more intensely for its primary cause, namely the restoration of the Rule of Law and the restructuring of the judiciary, which do not seem any easier today than they did four years ago; And, second, because EULEX is already under stuffed with high skilled personnel. Thus, if the probe is to yield any results in the short term and refrain from obstructing the already demanding primary task of EULEX, top experts both from the region and from the European Union should be immediately sent to Kosovo. A final important detail regarding human resources is related to local translators who are employed by EULEX in order to enable communication with Pristina. As it has been repeatedly claimed these translators often use their position to misguide EU authorities and, more importantly, spread the information acquired to the Albanian community . In that context, it is important, despite mild budgetary increases, for EULEX to hire international interpreters.

Build effective cooperation with local and international IGOs and NGOs: EULEX should stop blaming others for their lack of cooperativeness and work with what is available. This does not entail UNMIK or KFOR whose lack of political will cannot be challenged by any leverage tool available to EULEX. However, it does involve Kosovo authorities. It is essential that EULEX utilized its economic and political leverage on Pristina for enhancing cooperation. Furthermore, it is of outmost importance for EULEX to improve cooperation with NGO’s and IGOs in Kosovo (e.g. the International Red Cross) who have the necessary experience, connections and information sources that could be utilized in the context of the investigation. Finally, it is important that EULEX effectively cooperates with other investigatory bodies and takes the lead in the context of the probe. For instance, a constant flow of information between Belgrade prosecutor, OSCE and the Council of Europe with EULEX should be established as quickly as possible both in order to build stronger cases and to avoid time and human resources-consuming duplications. With regards to EULEX collaboration with ICTY and KFOR, while we consider Marty’s proposal for building a unified data base both politically uncomfortable and time-consuming and therefore unviable, it would be helpful if all three instruments were to further clarify and institutionalize their relationship and mandates in order to become more complementary and less competitive.

NOTES

According to Dick Marty’s report: “there are bodies that were cast into rivers in Kosovo and have been carried downstream over the border into Albania. The exhumation of sich bodies and the recovery of their remains by representatives of the OMPF in Kosovo would be relatively “uncontroversial” – but even intervention on these cases has been strongly resisted by the Albanian authorities”
The “Medicus case” involves accusations against top governmental officials and doctors for having built an international network which performed illegal human organs transplants on impoverished individuals who sold their organs in order to be bought by wealthy individuals from Israel, Russia and other countries
According to Dick Marty’s report, the primary suspect and one of the leaders of the network is Shaip Muja, a personal consultant of Hashim Thaci who has formerly held top governmental positions including the post of Cabinet member of the Provisional government of Kosovo and leading commander of the Kosovo Protection Corps.
Characteristically, through an official NATO-KFOR document leaked through the guardian in 2005, it is proved that Hashim Thaci’s implication and leading role in the Drenica group has been well known to NATO authorities. An analytical overview of the leaked report can be found in: Lewis, P. (January 2011) Report identifies Hashim Thaci as “big fish” in organized crime. The Guardian, 24.01.2011. Accessible at: http://www.guardian.co.uk/world/2011/jan/24/hashim-thaci-kosovo-organised-crime. Accessed on May 5, 2012
B92 (February 2012). Russia, China Back UN-led Organs Trafficking Probe, 08.02.2012. Accessible at: http://www.b92.net/eng/news/politics-article.php?yyyy=2012&mm=02&dd=08&nav_id=78694. Accessed February 9th 2012
Marty, D. (December 2010). Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (provisional version), Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Rights AS/Jur 2010 46
Montgomery M. & Raxhimi Al. (January 2011). Witness Safety Could Hamper Kosovo Organ Trafficking Investigation, Center for Investigative Reporting. Accessible at: http://cironline.org/reports/witness-safety-could-hamper-kosovo-organ-trafficking-investigation. Accessed on May 2, 2012.
Marty, D. (December 2010). Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (provisional version), Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Rights AS/Jur 2010
Ibid.
Ibid.
Papakostas, N. (2012). Rethinking the Kosovo Status Question in the Light of Contemporary Realities: Inertia instead of Conflict as the Main Hazard for the Region. Institute of Security and Defense Analysis. Retrievable from http://www.i-sda.eu/main/publications/SEE_IS2_V1.pdf
For a detailed overview of events that took place in July 2011 as well as their implications, see: Papakostas N. (2011) The Northern Kosovo Entanglement: EU and Serbia towards a Mutually Hurting Stalemate, Institute of Security and Defence Analysis, Athens. Retrievable from: http://i-sda.eu/main/publications/SEE_IS1_V1.pdf
European Union (February 2012). Press Statement: EU Facilitated Dialogue Agreement on Regional Cooperation and IBM Technical Protocol, PRESSE 9, 545512, Brussels. Retrievable from http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/128138.pdf
European Commission (October 2011). Commission Staff Working Paper: Albania 2011 Progress Report, SEC 1205 Final, Brussels
Marty, D. (December 2010). Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (provisional version), Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Rights AS/Jur 2010
Montgomery M. & Raxhimi Al. (January 2011). Witness Safety Could Hamper Kosovo Organ Trafficking Investigation, Center for Investigative Reporting. Accessible at: http://cironline.org/reports/witness-safety-could-hamper-kosovo-organ-trafficking-investigation. Accessed on May 2, 2012.
Marty, D. (December 2010). Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (provisional version), Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Rights AS/Jur 2010

Nikos Papakostas holds an MA in Southeast European Studies from the University of Athens and has a few academic publications on issues related to organized crime and corruption as well as a number of policy-making oriented contributions.

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